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What Is Common Law Marriage?

In a formal marriage, couples get a marriage license and have a civil or religious ceremony. The marriage becomes official when the county or state government issues the marriage license. In contrast, common law marriage is a type of marriage without a marriage certificate or formal ceremony. You could be considered married if you and your partner meet certain legal requirements.

The formal requirements for a legal marriage under common law vary by state and can include:

  • Long-term cohabitation: You and your partner live together for a long period of time. The length of time required varies by state.
  • Presents as a married couple: You and your partner present yourselves as spouses to family, friends, and the community by taking the same last name, holding joint credit cards and bank accounts, or filing your taxes jointly.
  • Capacity to marry: Both you and your spouse are legally able to marry. That means you both meet minimum age requirements, be considered of sound mind, and not be married to anyone else.
  • Intent to marry: You have mutual consent of the intention of getting married. A casual relationship or live-in relationship may not be enough to qualify.

The U.S. Supreme Court recognized the validity of common law marriages in 1877, allowing only heterosexual couples the right to this type of union. In states that still provide for common-law unions, a common-law same-sex marriage is also valid. Most states, however, ban common-law marriages. Some states offer limited recognition of common-law marriages if you met the requirements before the state banned them.

Common-Law vs. Traditional Marriage

The main difference between common-law marriages and traditional marriages lies in the formation of each union and the lack of a marriage license. After establishing a common-law marriage, state law requires the union to be treated like any other marriage. In most cases, there are no differences in the rights of either spouse during or after the marriage.

A written agreement stating you and your partner’s intention to marry may be considered the clearest intention of establishing a valid marriage. However, if there is a legal dispute, a judge may have to determine if there is a valid existence of a common-law partnership.

A Binding Marriage

In states that recognize them, a common-law marriage is just as valid as a formalized marriage. Common-law marriages last until a court grants a divorce or one partner dies. But what happens if your partner dies before you’ve legally established your common-law marriage? If this happens, you’ll have to prove your marital status to be able to inherit and access financial benefits, including:

  • Life insurance benefits
  • Disability benefits
  • Pension and other retirement benefits
  • Social Security survivor’s benefits

If you have questions about the legal benefits and inheritance rights available for married couples who don’t have a valid marriage license, you should talk to your family law attorney for legal advice.

Limited Recognition Common Law Marriage States

Only a few states still recognize common-law marriages. States that do recognize these unions include Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, and Washington, D.C.

Generally, there is limited recognition of existing common law marriages in states that have since banned the practice. For example, South Carolina eliminated the recognition of common law marriage in 2019. However, those who qualified before the ban are still considered married.

Even if other states do not recognize a common law marriage, every state recognizes common law marriages that were valid in the state where they were recognized. For example, a couple from Colorado with a common-law marriage would be considered married if they moved to Wyoming. However, without some recognition or legal documents recognizing the marriage, common-law spouses could have difficulty proving the relationship for inheritance purposes.

Divorcing a Common Law Spouse

States that do recognize common law marriages do not have policies for common law divorce. If you are married under common law, you have to go through the formal process for a divorce, including:

  • Qualifying under state divorce laws
  • Going through any mandatory waiting periods
  • Deciding property division, child custody, and spousal support
  • Settling any disputes in divorce court

If you have questions about a divorce petition for your common-law marriage, talk to an experienced divorce lawyer for legal advice.

Can You Get a Prenup for a Common Law Marriage?

You can get a prenup if you are in a state that recognizes common law marriages. In these cases, the agreement may be referred to as a cohabitation agreement, living together agreement, or prenuptial agreement. This agreement allows each party in the relationship to define their duties and rights, as well as each person’s obligations.

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